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EXHIBIT 4.11
THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), NOR HAS IT BEEN APPROVED BY THE UNITED STATES SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES REGULATORY AUTHORITY OF ANY STATE.
THIS WARRANT HAS BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO
DISTRIBUTION OR RESALE AND MAY NOT BE OFFERED FOR SALE, SOLD, MORTGAGED,
PLEDGED, HYPPOTHCATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT FOR SUCH WARRANT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT AND APPLICABLE STATE SECURITIES
LAWS.
WARRANT
to Purchase up to an Aggregate of 265,210
Shares of Common Stock
XXXXXX PETROLEUM COMPANY
(265,210 shares at $0.01 per share)
VOID AFTER 3:00 p.m. (prevailing New York time)
ON June 29, 2006
This is to certify that, for value received, Duke Capital Partners, LLC
(together with its permitted assigns, "Holder") is entitled to purchase, subject
to the provisions of this Warrant, from XXXXXX PETROLEUM COMPANY, a Delaware
corporation (the "Corporation"), at any time on or after the date hereof for a
period ending June 29, 2006, an aggregate of up to 265,210 fully paid and
nonassessable shares (the "Warrant Shares") of common stock, par value $0.01 per
share (the "Common Stock"), of the Corporation at a price of $0.01 per share, as
adjusted from time to time pursuant to the terms hereof (the "Exercise Price").
1. Exercise of Warrant. Subject to the provisions hereof, this Warrant
may be exercised in whole or in part (in multiples of at least 1,000 shares), at
any time or from time to time on or after the date hereof for a period ending
June 29, 2006. This Warrant shall be exercised by presentation and surrender
hereof to the Corporation at the principal office of the Corporation,
accompanied by (a) a written notice of exercise and (b) payment to the
Corporation, for the account of the Corporation, of the Exercise Price for the
number of shares of Common Stock specified in such notice. The Exercise Price
for the number of shares of Common Stock specified in the notice shall be
payable in immediately available funds.
Notwithstanding anything herein to the contrary, in lieu of payment of
the applicable Exercise Price, the Holder may elect to receive upon exercise of
this Warrant, the number of Warrant Shares reduced by a number of shares of
Common Stock having the aggregate Fair Market Value (as hereinafter defined) on
the date of exercise equal to the aggregate Exercise Price for the Warrant
Shares.
As soon as practicable after such presentation and surrender, but in no
event later than five business days following such date, the Corporation shall
issue and deliver to the Holder the shares
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of Common Stock to which the Holder is entitled hereunder. Unless at the time of
such exercise there is in existence an effective registration statement under
the Securities Act of 1933, as amended, concerning the shares of Common Stock
issuable upon exercise of this Warrant, the certificates representing the shares
purchased pursuant to the exercise of this Warrant shall be legended
substantially as follows:
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act") or under any state securities laws, and are "restricted
securities" as that term is defined in Rule 144 under the Act.
The securities may not be offered for sale, sold or otherwise
transferred without an effective registration statement for
such securities under the Act and applicable state securities
laws, or an opinion of counsel satisfactory to the Corporation
that registration is not required under such Act and
applicable state securities laws."
This Warrant may be exercised in part, provided that the shares of the
Corporation's common stock to be purchased upon any such partial exercise must
be for at least 1,000 shares or for any multiple thereof. If this Warrant should
be exercised in part, then the Corporation shall, upon surrender of this Warrant
for cancellation, execute and deliver a new Warrant evidencing the rights of the
Holder to purchase the balance of the shares of Common Stock purchasable
hereunder. Upon receipt by the Corporation of this Warrant, in proper form for
exercise, the Holder shall be deemed to be the holder of record of the shares of
Common Stock issuable upon such exercise, notwithstanding that the stock
transfer books of the Corporation shall then be closed or that certificates
representing such shares of Common Stock shall not then be actually delivered to
the Holder. The Corporation shall pay any and all expenses, documentary, stamp
or similar issue or transfer taxes and other charges payable in connection with
the preparation, issuance and delivery of Warrant Shares pursuant to this
Paragraph 1 in the name of the Holder.
No fractional shares of Common Stock shall be issued in connection with
the exercise of this Warrant, but the Corporation shall pay a cash adjustment in
respect of any fraction of a share which would otherwise be issuable in an
amount equal to such fraction multiplied by the Fair Market Value on the date of
exercise. Fair Market Value at any date shall mean the highest market price per
share of Common Stock on such date, as determined by the highest sale price,
regular way, or, if there shall have been no sale on such day, the average of
the highest reported bid and lowest reported asked price, in each case as
officially reported on the principal securities exchange on which the Common
Stock is listed or admitted to trading, or if not listed or admitted to trading
on any securities exchange, the average of the highest reported bid and lowest
reported asked price as furnished by the National Quotation Bureau Incorporated;
provided, however, that if the Common Stock is not traded in such manner that
the quotations referred to herein are available, the Fair Market Value shall be
deemed to be the fair market value of such Common Stock as determined by the
Board of Directors of the Corporation in good faith.
2. Reservation of Shares: Preservation of Rights of Holder. (a) The
Corporation hereby agrees that at all times it will maintain and reserve, free
from preemptive rights, such number of authorized but unissued shares of Common
Stock so that this Warrant may be exercised without additional authorization of
Common Stock after giving effect to all other options, warrants, convertible
securities and other rights to acquire shares of Common Stock. The Corporation
further agrees that it will not, by charter amendment or through reorganization,
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consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
the Corporation.
(b) All shares of Common Stock delivered upon the exercise of the
Warrant shall be validly issued, fully paid and nonassessable.
(c) As soon as practicable (but no later than 30 days) after the date
hereof, the Corporation shall list the Common Stock issuable upon exercise of
the Warrant on any securities exchange upon which any securities of the
Corporation are then listed, if the listing of such securities is then permitted
under the rules of such exchange.
3. Exchange or Loss of Warrant. This Warrant is exchangeable, upon
presentation and surrender hereof at the principal office of the Corporation,
only in connection with a partial exercise hereof. The Corporation shall be
under no obligation to issue replacement warrants for the aggregate number of
shares covered hereby except as described herein. The term "Warrant" as used
herein includes any Warrant or Warrants for which this Warrant may be exchanged.
Upon receipt by the Corporation of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of reasonably satisfactory indemnification, and upon
surrender and cancellation of this Warrant, if mutilated, the Corporation will
execute and deliver a new Warrant of like tenor and date.
4. Restricted Transferability and Registration Rights. This Warrant and
Common Stock issuable upon exercise of this Warrant are subject to the
restrictions on transfer, and the Holder is entitled to the registration rights,
set forth in the Registration Rights Agreement of even date herewith.
5. Adjustment. The number of shares of Common Stock purchasable upon
the exercise of this Warrant and the Exercise Price shall be subject to
adjustment from time to time as provided in this paragraph 5.
A. (1) If, during the term of this Warrant, the Corporation
shall pay or make a dividend or other distribution on any class of
capital stock of the Corporation in Common Stock, then the number of
shares of Common Stock purchasable upon exercise of this Warrant shall
be increased by multiplying such number of shares by a fraction, of
which the denominator shall be the number of shares of Common Stock
outstanding at the close of business on the day immediately preceding
the date of such distribution and the numerator shall be the sum of
such number of shares and the total number of shares constituting such
dividend or other distribution, such increase to become effective
immediately after the opening of business on the date following such
distribution.
(2) If, during the term of this Warrant, the outstanding shares
of Common Stock shall be, pursuant to a recapitalization or other
change in capital structure, subdivided into a greater number of shares
of Common Stock, then the number of shares of Common Stock purchasable
upon exercise of this Warrant at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately increased and, conversely, if outstanding shares of
Common Stock shall each be combined into a smaller number of shares of
Common Stock, then the number of shares of Common Stock purchasable
upon exercise of this Warrant at the opening of business on the day
following the day upon which such combination becomes effective
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shall be proportionately decreased, such increase or decrease, as the
case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.
(3) The reclassification of Common Stock into securities (other
than Common Stock) and/or cash and/or other consideration shall be
deemed to involve a subdivision or combination, as the case may be, of
the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number or amount of securities and/or
cash and/or other consideration outstanding immediately thereafter and
the effective date of such reclassification shall be deemed to be "the
day upon which such subdivision becomes effective" or "the day upon
which such combination becomes effective", as the case may be, within
the meaning of clause (2) above.
(4) The Corporation may in its sole discretion make such
increases in the number of shares of Common Stock purchasable upon
exercise of this Warrant, in addition to those required by this
subparagraph (A), as shall be determined by its Board of Directors to
be advisable in order to avoid taxation so far as practicable of any
dividend of stock or stock rights or any event treated as such for
federal income tax purposes to the recipients.
B. Whenever the number of shares of Common Stock purchasable
upon exercise of this Warrant is adjusted as herein provided, the
Exercise Price shall be adjusted by multiplying it by a fraction, of
which the numerator is equal to the number of shares of Common Stock
purchasable prior to the adjustment and the denominator is equal to the
number of shares of Common Stock purchasable after the adjustment.
C. If any consolidation or merger of the Corporation with
another entity, or the sale of all or substantially all of its assets
to another entity, shall be effected in such a way that holders of
Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Common Stock, then, as a condition
of such consolidation, merger or sale, lawful and adequate provisions
shall be made whereby the Holder shall thereafter have the right to
purchase and receive upon the basis and upon the terms and conditions
specified in this Warrant and in lieu of the shares of the Common Stock
of the Corporation immediately theretofore purchasable and receivable
upon the exercise of the rights set forth herein, such shares of stock,
securities or assets as may be issued or payable with respect to or in
exchange for a number of outstanding shares of such Common Stock equal
to the number of shares of such stock immediately theretofore
purchasable and receivable upon the exercise of the rights set forth
herein had such consolidation, merger or sale not taken place, and in
any such case, appropriate provisions shall be made with respect to the
rights and interests of the Holder to the end that the provisions
hereof (including without limitation provisions for adjustments of the
exercise price and of the number of shares purchasable and receivable
upon the exercise of the Warrant) shall thereafter be applicable, as
nearly as may be, in relation to any shares of stock, securities or
assets thereafter deliverable upon the exercise hereof. If a purchase,
tender or exchange offer is made to and accepted by the holders of more
than 50% of the outstanding shares of Common Stock of the Corporation,
the Corporation shall not effect any consolidation, merger or sale with
the person having made such offer or with any affiliate of such person,
unless prior to the consummation of such consolidation, merger or sale
the Holder shall have been given a reasonable opportunity to then elect
to receive
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upon the exercise of the Warrant either the stock, securities or assets
then issuable with respect to the Common Stock of the Corporation or
the stock, securities or assets, or the equivalent issued to previous
holders of the Common Stock in accordance with such offer.
D. In the event of (i) any taking by the Corporation of a
record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any
dividend or other distribution, or any right to subscribe for, purchase
or otherwise acquire any shares of stock of any class or any other
securities or assets, or to receive any other right, (ii) any
reorganization of the Corporation, or any reclassification or
recapitalization of the capital stock of the Corporation, or any
transfer of all or substantially all of the assets of the Corporation
to, or consolidation or merger of the Corporation with any other person
or (iii) any voluntary or involuntary dissolution or liquidation of the
Corporation, then and in each such event the Corporation will mail or
cause to be mailed to the Holder a notice specifying the date on which
any such record is to be taken for the purpose of such dividend,
distribution or right, the amount and character of such dividend,
distribution or right, the date on which any such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding-up is to take place, and the time,
if any, as of which the holders of record of Common Stock shall be
entitled to exchange their shares of Common Stock for securities or
other property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution,
liquidation or winding-up. Such notice shall be mailed at least 20 days
prior to the proposed record date therein specified.
For the purpose of this Paragraph 5, the term "Common Stock" shall
include any shares of the Corporation of any class or series which has no
preference or priority in the payment of dividends or in the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of the Corporation and which is not subject to redemption by the Corporation.
6. Notice. Whenever the number of shares of Common Stock for which this
Warrant is exercisable is adjusted as provided in paragraph 5 hereof, the
Corporation shall promptly compute such adjustment and mail to the Holder a
certificate, signed by the chief financial officer of the Corporation, setting
forth the number of shares of Common Stock for which this Warrant is exercisable
and the exercise price as a result of such adjustment, a brief statement of the
facts requiring such adjustment, the computation thereof and when such
adjustment will become effective.
7. Rights of the Holder. Prior to the exercise of this Warrant, the
Holder shall not, by virtue hereof, be entitled to any rights of a shareholder
in the Corporation.
8. Termination. This Warrant and the rights conferred hereby shall
terminate at the aforementioned time on June 29, 2006.
9. Governing Law. This Warrant shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware without regard to conflict of
laws principles.
10. Remedies. The Corporation stipulates that the remedies at law of
the Holder in the event of any default or threatened default by the Corporation
in the performance of or compliance with any of the terms of this Warrant are
not and will not be adequate and that such terms may be
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specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or thereof or otherwise.
DATED: January 29, 2001
ATTEST: XXXXXX PETROLEUM COMPANY
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxx, Secretary Name: Xxxx X. Xxxxxxxxx
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Title: Senior Vice President and CFO
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